Tuesday, Jul 01 2014
• 10 a.m. (ET)

Supreme Court Decisions: Religious Freedom and Public Unions

Lori Windham (C), senior counsel for The Becket Fund for Religious Liberty,addresses the news media in front of the Supreme Court after the decision in Burwell v. Hobby Lobby Stores June 30, 2014 in Washington, DC. The high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom.
Chip Somodevilla/Getty Images

Yesterday the Supreme Court ruled that some for-profit companies don’t have to include birth control for women in their company health plans as mandated by the Affordable Care Act. Closely held for-profit companies can be exempted if owners object for religious reasons. Supporters say the decision is a victory for religious freedom. Critics argue it will invite many more challenges to federal law on religious grounds. In another decision yesterday the Supreme Court ruled that home healthcare workers cannot be compelled to pay a fee to public unions who lobby on their behalf. Please join us to talk about both of these decisions and their implications.

Guests

Barry Lynn
executive director, Americans United for Separation of Church and State and author of "Piety & Politics."

Sandra Fluke
Democratic candidate for California Senate District 26 and social justice attorney in Los Angeles.

Transcript

10:06:53

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Yesterday, the Supreme Court ruled that some for-profit businesses do not have to include birth control in company health plans based on religious beliefs of their owners. This requirement of the Affordable Care Act had already been waived for churches and other religious non-profits.

10:07:18

MS. DIANE REHMJoining me to talk about this decision and another ruling yesterday that weakens the reach of public unions: Julie Rovner of Kaiser Health News, Mark Rienzi of Catholic University, Barry Lynn of Americas United for Separation of Church and State, and Nina Totenberg of NPR. You are of course, as always, invited to join the discussion. Give us a call at 800-433-8850. Send us your email to drshow@wamu.org. You can follow us on Facebook or send us a tweet. And welcome to all of you.

10:08:03

MS. JULIE ROVNERNice to be here.

10:08:03

MR. BARRY LYNNThank you.

10:08:04

PROF. MARK RIENZIGood to be here.

10:08:04

MS. NINA TOTENBERGGreat to be here.

10:08:05

REHMGood to see you all. Mark Rienzi, is this the first time the Supreme Court has ever given religious protection to for-profit businesses?

10:08:20

RIENZIIt's the first time that the issue has come up in terms of a for-profit business or for-profit corporation. But over history, the court has repeatedly recognized religious liberty for both individuals who are making money and for corporations. So it's not that big a surprise. The law has treated corporations as persons for at least 150 years, and that's the baseline assumption of federal law. And it's not terribly surprising to see the court do it here.

10:08:43

REHMNina Totenberg, explain to us the legal grounds on which this Hobby Lobby case was decided.

10:08:54

TOTENBERGWell, Justice Alito, Samuel Alito, speaking for a five-justice majority, said that the Religious Freedom Restoration Act, which was passed by Congress some -- more than 20 -- some 20 years ago, I guess, says that there have to be special protections for religious liberty that may not be in the Constitution. That law was enacted after the Supreme Court said in an opinion by Justice Scalia, interestingly, that if a law applies equally to everyone, there are no religious exceptions, as long as there's no discrimination.

10:09:31

TOTENBERGAnd so they passed this law. Congress had a fit. It passed this law. And the court yesterday -- a majority of the court said the law covers for-profit corporations that are closely held. And it didn't define what closely held meant...

10:09:47

REHMHow do you define closely held?

10:09:51

TOTENBERGI guess I define it -- reading what they said -- as a corporation that does not have public shares, that doesn't -- is not -- does not have publicly traded shares. It's questionable whether it has to be five strangers who come together to run a company could do this, if they're not related. This company was a family -- is a -- Hobby Lobby is owned by a family.

10:10:15

TOTENBERGThis -- so it's not entirely clear to me what would happen if five guys from Harrison showed up and made a billion bucks doing this and wanted to not cover certain kinds of contraception. But the court sought to narrow it that way and also seemed to say all the horribles that you've heard, they're just horribles. They're not really going to happen.

10:10:37

REHMAnd, Barry Lynn, how many corporations throughout the country can we say would fall into this closely held category?

10:10:50

LYNNWell, I'm not sure about the number, but I am sure that about 50 percent of American workers work for the kinds of closely held corporations as Nina's just described it. So this is -- has an enormous effect. And it has an effect, I think, far beyond the issue of birth control. Only in the sense that this case happened to be about birth control is it a narrow decision. But in it are the seeds for an enormous amount of mischief for American workers on other issues.

10:11:19

REHMSuch as?

10:11:21

LYNNI think on other health-related matters. I think on anti-discrimination laws, unless it is about race. Clearly, everyone on the court says you can't trump anti-discrimination laws about race based on your religious beliefs. But as far as gay and lesbian rights, as far as women's rights, I think they were scrupulously careful not to go too far.

10:11:40

REHMHmm.

10:11:45

LYNNAnd they didn't make me terribly comfortable with the rhetoric they used about the parade of horribles. I think we're going to see horrible things to come.

10:11:54

10:12:01

ROVNERNo, in a word. It does not. There are other cases working their way through the federal courts that could. This was not one of them. This was definitely this particular piece that had been a very thorny issue from the beginning now. Also in the pipeline are the sort of the other half of the debate on contraceptive coverage, which are the non-profit, mostly Catholic hospitals and universities.

10:12:24

ROVNERAnd, interestingly, within this opinion, the majority said, well, why don't they just extend the accommodation they're giving to those non-profits to the for-profits, which seemed to sort of tip the hand of how they might decide the non-profit cases. So that's kind of an interesting thought.

10:12:43

REHMSo, Mark, you've got many supporters of this decision saying it's a good step in the effort toward maintaining and indeed maybe even expanding religious freedoms.

10:13:01

RIENZIIt's a great decision for protecting freedom for all Americans. It says that the government doesn't get to force people to violate their religious beliefs, particularly where it has other ways to achieve its goals. And just to go back to Julie's point about the non-profit cases, the court was very clear to mention and reaffirm its holding for the Little Sisters of the Poor in the case.

10:13:20

RIENZIAnd it said that, under that holding, non-profits could simply notify the government but didn't have to comply with the government's special form rules. So it's actually a very strong decision both for family businesses and for folks like the Little Sisters of the Poor and Mother Angelica's Eternal Word Network, both of whom have been protected.

10:13:39

REHMBarry Lynn, this line between church and state has certainly shifted a lot in the last 15, 20 years.

10:13:50

LYNNIt certainly has. And, ironically, the Supreme Court seems to be out of step with the general views of the American people on these issues. When you look at polling data -- and it's all suspect, of course. But when you look at polling data, you find that Americans are not as interested as the court is willing to be about sacrificing the views of non-believers, the views of religious minorities.

10:14:15

LYNNAnd I don't think this case yesterday is about religious freedom. It's about corporate power, almost the creation of a corporate theocracy, the idea that in many instances, starting with birth control, and in this decision, they really trivialized this important preventative care measure for millions of American women. It's the sense that women don't matter that much and that you can craft this completely specious idea of a corporate conscience.

10:14:44

LYNNWell, I'll believe corporations have religious freedom rights when, for example, they're allowed to get married or possibly take the sacraments or maybe when they're eligible for rapture. But these companies do not exercise religion. Companies exercise speech. They advertise. We know that. But they don't exercise religion in any meaningful sense of the word.

10:15:06

REHMNina Totenberg, what about Justice Ginsburg's statement and concerns about expansive notions of personhood?

10:15:19

TOTENBERGWell, while the majority cast this decision as limited, she said it's expansive. It's -- I don't think she used the word radical, but she -- and she had a lot of examples. You know, what happens when an employer says it's against his religious beliefs to have blood transfusions, for example, or to have hospice care or to hire women for certain occupations? Because, as we've heard, that -- sex discrimination was not specifically ruled out as a -- civil rights laws that cover women was not specifically ruled out by the Alito opinion.

10:16:08

TOTENBERGSo all the court said was, OK, racial discrimination always trumps everything, but it didn't say anything about sex discrimination or disability discrimination or even ethnic discrimination. So, conceivably, in the view of the dissent, this could be an expansive ruling. What happens when an employer says it's against his religion to pay minimum wages, that -- so that's her view.

10:16:39

REHMMark.

10:16:41

RIENZITwo points on that. One, on the parade of horribles, the minimum wage law, the blood transfusions, big non-profit religious organizations have been allowed to exercise religion under RFRA for 20 years and the First Amendment for a long time before that. We've never seen one winning case where anybody makes the argument.

10:16:59

RIENZIAny employer who had a religious objection to covering blood transfusions was free to refuse to cover them from the dawn of time until 2012. Yet no one in this room and no one in your audience has ever heard of an employer doing that because it doesn't happen. If it does happen, the test is clear. The government comes in. It tries to show that it has a compelling government interest, and it's used the least restrictive means. And maybe in some other case, they could do better.

10:17:22

RIENZIAnd last point on Barry's discussion of businesses not having consciences, the bottom line is that was the government's key argument. Only two justices on the court bought it. The other seven did not endorse the government's view that businesses cannot exercise religion. Justice Kagan and Justice Breyer didn't say a word about it either way. And the five in the majority did. So it's a losing argument. Businesses can exercise religion.

10:17:45

REHMJulie.

10:17:46

ROVNERUntil the Affordable Care Act, health insurance was voluntary if you were an employer. So you didn't -- anything you offered was -- anything you did or didn't offer was basically up to you.

10:17:54

RIENZIAnd you've never heard of anyone not offering blood transfusions, have you?

10:17:58

ROVNERWell, Christian Scientists offer a different kind of package of health insurance.

10:18:03

RIENZIBut the idea of the employer who says I can't cover blood transfusions for my employees, even if they want them, is something that I don't think we've seen in any cases anyplace.

10:18:11

REHMMark Rienzi of Catholic University, he is professor of constitutional law. Short break here. And we've got lots of callers waiting. When we come back, I'd like Nina Totenberg to talk about the other case that came out, Harris v. Quinn. I look forward to speaking with you.

10:19:52

REHMAnd welcome back. Two cases that came from the Supreme Court yesterday, one on closely held for-profit companies that can be exempted from providing birth control for women, the other when the court rules that homecare workers cannot be compelled to pay a fee to public unions who lobby on their behalf. Nina Totenberg, that was Harris v. Quinn. Explain that case for us.

10:20:32

TOTENBERGIt's a very big deal for unions. In 1977, I guess nearly 40 years ago, the court said -- and in doing so, it sort of reaffirmed what was kind of an understanding up until then. It said public employee unions, not everybody has to join, but if you don't join the union, if you're not a union member, you can be forced to pay administrative fees for negotiating the contract that you benefit from and the grievance procedure that you benefit from but not political money that's spent for ideological purposes. And that's been the law ever since.

10:21:14

TOTENBERGAnd these days, unions are growing in the public employment sphere. That's their biggest growth area. Well, a couple of years ago, Justice Alito wrote with endorsement from several other conservative members of the court that it was time to revisit that, and he suggested reverse it. Enter this case from Illinois, and it -- they dodged ruling directly on that but set up goalposts that suggest that they may in a very few years, in fact, say that when you join a public employee -- when there's a public employee union, you don't have to join, and you don't have to pay anything.

10:21:58

TOTENBERGAnd if that happens, the whole economic framework of unions is deeply -- excuse me, folks -- is deeply threatened, I think. And the view that Justice Alito expressed is that anything you do when you pay money to a union and it's a public employee union involves speech that advances public spending, public employment. And therefore you're being forced to endorse that when you may not want to.

10:22:30

REHMBarry Lynn, some people have said this was a mortal blow for public unions. Others have said it was a minor one.

10:22:42

LYNNI think in this case -- and this is not one Americans United participated in directly, but I think it's the same trend that we see in Hobby Lobby. That is, you start to whittle away and make a decision that, in this case, I think, among other things, trivializes the work that home healthcare workers do. And then that become the basis for building on it to make even more draconian decisions later. And I think in both of these cases yesterday, we see this pattern in the Roberts court that is likely to continue sadly.

10:23:14

REHMMark.

10:23:16

RIENZII'm not sure it was trivializing what home healthcare workers do. The suit was brought by home healthcare workers who said, I just don't want to be forced to be part of the union.

10:23:23

REHMWhy do you think these two important cases were left to the last day?

10:23:31

TOTENBERGThe reasons that cases like this were left to the last is obvious. They didn't have full agreement on all the details. Justice Kennedy in the Hobby Lobby case wrote a separate concurring opinion. He agreed with everything that Justice Alito said, but the gist of those few pages of concurring opinion is basically saying don't panic. As long as I'm here, we're not going to do crazy things. That's the translation, sort of.

10:23:59

TOTENBERGAnd in this -- in the union case, they obviously didn't have five votes to reverse that 1977 decision. I think it's fair to say, in that case, they've got Kennedy. He's very much of a purist on First Amendment questions. The person they didn't have apparently is Justice Scalia who has consistently said that you can't be a free rider on union dues, that you have to pay your fair share, so they didn't have that yet. So they set up the goalposts, and they said, give us the ball to kick through, and we'll see what we can do.

10:24:33

REHMJulie.

10:24:34

ROVNERYeah, if you read the Hobby Lobby decision, you can see that they went back and forth and back and forth because they're answering each other in the decision, in the dissent. So obviously -- I mean, everybody assumed that this would be -- until last -- they didn't argue it until the end of March, by the way. So it was not that surprising it would come out towards the end.

10:24:49

REHMAll right. Julie, here's a tweet from Kaitlin: "Is this ruling only regarding hormonal contraception pills, implants, NuvaRing, or does it apply to diaphragms as well?"

10:25:07

ROVNERIt applies to FDA-approved contraceptive drugs and devices. That's actually the -- what the HHS regulations apply to. It does not -- and there was a lot of confusion -- I actually put this on Twitter yesterday -- apply to the actual abortion bill RU486 Mifepriston, Mifeprex, that's all. That's all the same thing. That is the medical abortion pill. That is not included in this. It never was included in this.

10:25:32

ROVNERThe confusion comes because some people believe -- and obviously the plaintiffs in this suit believe that emergency contraceptives and, in some cases, IUDs can block a fertilized egg from implanting in a woman's uterus. That's also subject to scientific debate. But they believe that that can block a fertilized egg from implanting in a woman's uterus. And they call that an early abortion. Medical science does not. But that is their belief, and that's what this case was premised on.

10:26:02

TOTENBERGI think the gist of that question is, Hobby Lobby objects to four methods of contraception.

10:26:07

REHMFour.

10:26:08

TOTENBERGAnd so what about the rest of them? And the answer came at oral argument when Justice Ginsburg asked the lawyer for Hobby Lobby, Paul Clement, if you prevail, would your reasoning apply to all of the methods of contraception? And he said, yes, it would.

10:26:23

LYNNAnd indeed one of the companies that also is involved in litigation does prohibit coverage of all of these methods. So this is not hypothetical. And there's a lot that's not hypothetical. Nina's right that, in this concurrence from Justice Kennedy, you can get some comfort from it. But I am not convinced that Hobby Lobby would, in fact, agree to do what has been suggested by several of the justices yesterday.

10:26:50

LYNNWould you sign a document that says, look, we refuse to cover some or all of these contraceptives, but we're going to sign a document, send it to the government, and the government's then responsible for providing it free? Notre Dame University will not do that in the next wave of cases where we are the only group that actually represents any women in any of these 90 cases. They refuse to sign that document. I wonder if Hobby Lobby would sign it. I suspect they might not.

10:27:16

REHMJulie.

10:27:16

ROVNERIt's not the government that's actually providing the contraceptives in these cases. It's the insurance companies providing it actually.

10:27:21

REHMRight, right.

10:27:23

ROVNERAnd this is a big question because this is what the accommodation is, that the justices are suggesting, that the insured -- that the determination has been made that providing these contraceptives is less expensive for the insurance company than paying for the cost of pregnancies. And the -- for these -- you know, mostly Catholic universities and hospitals on the insurance company have basically decided that they'll eat the cost.

10:27:47

ROVNERThe question is, if this becomes expanded to for-profit companies -- and again, we don't quite know how big the universe is of these closely held companies. The insurance industry might start to wonder about paying. You know, an IUD can cost a thousand dollars. This could get quite expensive. I asked the insurance industry yesterday. They said they had no comment yet. So this could start to get expensive.

10:28:08

TOTENBERGIt could start to get expensive, but I do think we should say that a great many of the closely held for-profit corporations that we've talked about that are multi-billion dollar corporations, Bechtel, Cargill -- Cargill has 140,000 employees and hundreds of billions of dollars in revenues every year, for example. It's not in their self-interest to get into this kind of a fight with women and women's groups because they're big public -- they're not publicly held, but they're big corporations that have a public image. They don't want to do that, so a great many of these closely held corporation will just say, yes, we'll cover everything.

10:28:49

REHMMark.

10:28:50

RIENZIAnd for a big company like Bechtel to make their claim, they'd have to come in and commit perjury and lie that they have a religious reason for doing what they're doing. There's a reason that there may be a lot of closely held companies in the country, but there was a tiny, tiny, tiny minority of them who actually files suit over this. Most of them aren't exercising religion, but what our law says is, when you do exercise religion, the government can't crush you unless it's got a pretty good reason.

10:29:14

REHMBarry.

10:29:15

LYNNThis -- I have known you, and I've known Nina for a very long time. I have never, until now, suggested that I question the sincerity of a religious claim that's being made. But I have to tell you, in the Hobby Lobby case, I do question it. I question the sincerity of a company that makes this big a fuss over covering these four forms of contraception, which are not abortifacients. At the same time, they offer a panoply of retirement plans for their own employees. And they can choose to invest in the very companies that make some of these drugs.

10:29:51

REHMAnd that was a tweet from Evan. "Please speak on revelations that Hobby Lobby holds financial interest in pharma companies that make birth controls, including Plan B."

10:30:07

LYNNThey don't have a direct interest. They just offer this in a retirement plan in the same way that in an insurance plan that covers thousands of medical devices, procedures and drugs, they won't allow women to make a choice to use four of them. But they don't care if the same employees make a choice to invest in the company that makes them. I consider that so hypocritical that I do question the sincerity of the company.

10:30:32

REHMMark.

10:30:32

RIENZITwo points about that. One, Hobby Lobby's not stopping anybody from getting anything. The employees are free to get the drugs wherever they want, and the government's free to provide it on the big government-run health exchanges. It's interesting that Barry has his view that the religious belief is not sincere here, but people are entitled to have different religious beliefs than Barry Lynn. And the government accepted the religious belief as sincere, and nine out of nine Supreme Court justice accepted the religious belief is sincere. So it is a sincere religious belief. It was held left, right, and center.

10:31:00

REHMAnd joining us now from Los Angeles is Sandra Fluke. She's Democratic candidate for California Senate, District 23. She's an attorney for social justice. Hi there, Sandra. Thanks for joining us.

10:31:20

MS. SANDRA FLUKEThank you for having me.

10:31:21

REHMYour piece in today's Washington Post suggests that you see this decision as part of a disturbing larger trend of new limits on women's healthcare. Explain.

10:31:40

FLUKEWell, I think this decision is part of a unfortunately disturbing trend on religious liberty doctrine as well. But on the women's health aspect of it, there's a couple of things that concern me. Number one is part of the tests here was to explain what the government's compelling interest was in this regulation.

10:32:01

FLUKEAnd the majority was rather dismissive of the compelling interest of ensuring that women had affordable access and coverage of healthcare and the ways in which birth control specifically relates to equality of opportunity for women. The majority assumed that that interest was compelling, but their discussion, I think, raises some red flags, so much so that Justice Kennedy felt the need in his concurrence to say, I think it's really important that we stress that this is a compelling interest. Because I think he saw that the majority had some wavering on that point.

10:32:38

FLUKESecondly, unfortunately, one of the other aspects of the test is that there be a substantial burden on the exercise of religion. And the majority basically accepts the plaintiffs', Hobby Lobby and the other employers, contention that this is a substantial burden. And in doing so, they basically skim over the second step in this chain of events. They say, you know, the company is required to provide insurance that covers birth control, and therefore that impugns their exercise of religion.

10:33:11

FLUKEAnd they skip over this second step of women and their doctors -- and if they choose -- their family, and their god, making decisions about their healthcare. And not acknowledging that as a distinct moral decision in the chain of events I think is also problematic. But the most problematic aspect of this is that the conclusion that the majority arrives at is that the government had other means for achieving its goals here. And they point to two possibilities.

10:33:44

FLUKEOne is that the government could directly provide contraception through funding programs. And the other is opening the exemption program that has been provided to religiously affiliated non-profits to closely held for-profit businesses as well. And the problem with those suggestions is just a lack of understanding of the context of where we are on reproductive rights and justice in this country. This is a time when government funding for family planning, including contraception, is very much under attack in multiple states and has been at the federal level as well through programs like Title X.

10:34:24

FLUKESo the court can suggest that the government has another means, but that's not actually politically so easily accomplished. And, secondly, there's actually a tax on women even being able to use their own funds to purchase coverage that includes things like abortion on many of the exchanges in numerous states. In the federal exchange, insurance companies are not able to offer insurance that covers comprehensive reproductive healthcare. So there's (unintelligible)

10:34:55

REHMAnd you're listening to "The Diane Rehm Show." Sorry to interrupt you there, Sandra. You say you think it's time for the White House to get involved. What do you want to see the president do?

10:35:13

FLUKEWell, I think there's a few things that need to be done in response to this court decision. First of all, RFRA, that act that it's based on, is a congressional statute. So Congress could take action unfortunately. That's probably politically challenging. But the administration can also take action to expand the program they've set up for religiously-affiliated non-profits to cover the women who are employed by these types of corporations as well. And that would allow them to have insurance coverage of birth control without their employer contracting for it or paying or being any way involved.

10:35:51

REHMJulie Rovner, what do you think of that possibility?

10:35:54

ROVNERWell, you know, this is such a fraught issue. You know, going back to the question of the government paying for it, Title X, which is the federal family planning program, hasn't been reauthorized in Congress because of various abortion-related fights since 1984. And this is just the -- this is the family planning program but every time they try to actually bring it up, there's some abortion-related argument that steps up. It's been funded but it hasn't been reauthorized since 1984.

10:36:22

ROVNERSo this is -- you know, you talk about the atmosphere in Congress. This is nothing new. And I think that this -- and obviously the fights that are going on in the states, cutting off access to abortion coverage, and in some -- there are some efforts to cut off access to certain types of family -- of birth control and family planning in the states too. So it's not a -- it's a difficult political situation.

10:36:43

REHMNina.

10:36:44

TOTENBERGWell, there are two things you can say here with great clarity. One is that the public sort of politicization of this issue is sort of remarkable when you consider that Dwight Eisenhower was co-chairman of Planned Parenthood in the 1950s. And this is all related to -- it got sucked in with abortion. And the second thing you can say here is that this will be a great fundraising tool for the Democrats. They will raise an incredible amount of money off of this.

10:37:12

REHMNina Totenberg of NPR. Sandra Fluke, thank you so much for joining us. We'll take a short break. Your calls when we come back. Stay with us.

10:39:59

REHMAnd welcome back. Time to open the phones, 800-433-8850. Let's go first to Wendy in New York City. Hi. You're on the air.

10:40:14

WENDYHi. Thank you for the -- taking my call.

10:40:16

REHMSure.

10:40:18

WENDYIt's ironic that the Supreme Court rules that your cellphones can't be seized, but they're OK with Hobby Lobby controlling the reproductive rights. Hobby Lobby said they will supply traditional birth control pills, but they're calling the morning after pills and IUDs abortive devices. So do fertilized eggs now fall under the new criteria regarding restricted abortions?

10:40:44

REHMJulie.

10:40:46

ROVNERWell this is, you know, one of the things that's actually making the medical community very, very, very unhappy. The medical definition of pregnancy is, is basically when, you know, is not when a -- preventing a fertilized egg from implanting in a woman's uterus. And, in fact, both of these, particularly plan B, the emergency contraceptive, does not appear to even work this way. So it appears that this belief is actually mistaken in addition to everything else, which adds even more complications to it.

10:41:15

ROVNERIn Europe, the label is already been changed to say, this is not how it works. But the FDA hasn't changed the label yet. So in the legal, the FDA -- the Obama Administration, the Justice Department stipulated this, even though scientifically, it's probably not accurate. So it's adding a whole 'nother layer of complication to this entire thing.

10:41:34

LYNNYeah, no. This is what's so shocking. The Hobby Lobby and many of these other smaller corporations have decided that they are going to adopt junk science, not real science, to justify claiming that this is a burden on their moral character.

10:41:48

REHMBut what about the Justices themselves when you think about the presentation of this case on what you describe as fictional or untrue religious grounds?

10:42:05

LYNNSome -- you know, Diane, sometimes I think the Justices, all of them, ought to get out more and see how real people live and what really happens. It is -- it cuts to my core, also, as somebody who believes in the judicial system, that this case, yesterday, with five Catholic male judges deciding the reproductive rights of hundreds of thousands, maybe millions, of American women, whether that doesn't discount the credibility of the court itself.

10:42:35

REHMAnd here's...

10:42:36

LYNNAnd that's a big problem.

10:42:37

REHMHere's a tweet from Dina: "Five Roman Catholic men decided, we need more diversity." Nina.

10:42:47

TOTENBERGWell, the Supreme Court is composed of six Catholics and three Jews. There are no Protestants. It's sort of the reverse of what it once was. And I did a story about this when Justice Stevens was going to retire because he was the last Protestant on the court. And it was very interesting to me. I talked to all kinds of religious philosophers, law professors who specialize in this area, and nobody thought it was particularly important that what -- any justices' religion was anymore, that it had once been a very big deal, but that it was no longer important.

10:43:24

TOTENBERGThe most I could get was that, you know, some people said, religion -- somebody's religion sometimes reflects -- it's very hard to say. If you're a very conservative justice or judge, you would've bit -- is that because you're a conservative Catholic or is it the other way around? I mean, the two are inextricably intertwined. This is your -- your philosophy of judging and your philosophy of life are together. And you can't say one is caused by the other. They -- it's who you are.

10:43:54

REHMMark.

10:43:55

RIENZII think it's actually pretty demeaning to the Supreme Court and to the justices to pretend that their votes are driven by their sex or by their religion or by their race. Last week, Justice Kagan voted to uphold the speech rights of a pro-life Catholic woman on the sidewalks in Boston. Justice Kagan didn't do that because she's a Jew -- a Jewish woman. Justice Kagan did that 'cause that's what she understands the law to be. That's how all nine of the justices approach these cases. Some of them are more conservative, and some of them are more liberal. But it's not about their religion.

10:44:23

REHMHere is a tweet from Joseph, who says, "Seems there's a common thread in these two cases of not trusting women to make their own economic decisions." How do you see that, Julie?

10:44:40

ROVNERWell, that's certainly been a concern, you know, in the public reaction, obviously, in the union case, that these were women. And healthcare workers are very overwhelmingly women. So that certainly is -- has been a concern with this Supreme Court. If I could go back for a second to the last argument, it's worth pointing out that neither of the plaintiffs in this case are actually Catholic. The Greens who own Hobby Lobby are conservative Christians, and the owners of Conestoga Wood, the other company involved in the case...

10:45:10

TOTENBERGThey're Mennonite.

10:45:11

ROVNER...they're actually Mennonites. So -- but this is the -- their point is really a -- their belief is when life begins, and I think that's been conflated to when pregnancy begins. And I think that's sort of how we've gotten into this whole problem of trouble of defining sort of, you know, what's birth control and what's abortion.

10:45:28

REHMIndeed.

10:45:28

ROVNERAnd that's been sort of the issue here.

10:45:30

TOTENBERGYou know...

10:45:31

RIENZIAnd that's great 'cause it really hasn't been disputed that life begins at conception. I think any embryology textbook will tell you that. And the religious belief here is, simply, these people say, I can't be involved in doing something that kills life at that point.

10:45:42

TOTENBERGI want to just say one thing. I agree with Mark, that it is demeaning to a judge to say that his or her views are driven by their religion or they're being, in essence, told by their religion. But there are times when you can see that, who you are, it is obvious in court, so that, during the argument, in the Hobby Lobby case, the three women justices, I really have never seen them go after somebody as hard as they went after the lawyer for Hobby Lobby.

10:46:15

TOTENBERGI mean, it -- there was a sense that they had experienced whether -- the decisions on whether to have children or not and how to prevent having children and concern about when they would have children in a sense that was not -- it was not apparent with the male justices.

10:46:32

REHMI just want to go back to a point Mark made and get your thoughts, Barry. He said, everyone agrees that life begins at conception.

10:46:45

LYNNYeah, I don't think everybody agrees on that. And we know, of course, that 40 percent of fertilized eggs, in most scientific reviews, are -- do not become fetuses, do not become people. So there's dispute about that. But the other thing -- there's a theological dispute. And Mark suggested everybody doesn't have to believe what I believe, and I certainly agree with that.

10:47:09

LYNNHowever, when you look at the whole range of activities with which Hobby Lobby is engaged, buying hundreds of millions of dollars' worth of products from China, a country that has persecuted Christians, has a -- still has effectively a forced abortion policy and uses child labor, buys all these products, when many people left, right, and center try scrupulosity to avoid purchasing from that country for those very same reasons, it goes to the question that I raised earlier of sincerity.

10:47:41

LYNNWhen you add this dubious sincerity, this highly attenuated connection between the acts of these women employees and the use of these, what they call -- falsely call, abortifacients, Justice Ginsburg called it attenuated. But if you're going to want to be as pure as Caesar's wife, then you really need to be pure in every direction when it comes to abortion related issues. Hobby Lobby clearly is not. Maybe, the next go around, this will be an issue.

10:48:11

REHMMark.

10:48:11

RIENZIYeah, Barry's right to point to the next go around 'cause, again, in this go around, the justices accepted, 9-nothing, that the belief was sincere, and so did the government. The fact that somebody has ever done business with China, we could probably have another program on whether it's good for freedom in China, for American companies to do business over there or if it would be better for them to close them off. I don't even know what the answer is, but I sure know it had nothing to do with this case.

10:48:33

10:48:40

RICHARDYeah, thank you, Diane. I guess you all stole my question. But I just want to add one thing, is that males have vasectomies. It's a form of contraception. And I was wondering if anybody in the panel knows if the Affordable Care Act covers that. And if it does, does Hobby Lobby going to deny men getting that procedure done?

10:49:06

REHMJulie Rovner, does the Affordable Care Act cover vasectomies?

10:49:12

ROVNERIt's not part of the preventive services package. I'm actually not sure.

10:49:18

TOTENBERGYou know, my assumption is that it's included in regular medical care and that it probably is covered. But it's -- it wouldn't, in the sense that, it prevents -- it's not the same as a fertilized egg. It means you can have sex, but nothing's going to happen, ever. It doesn't even -- it just doesn't deal with a so-called human life, in a cellular sense, at all.

10:49:50

LYNNYou know, I'm still confused -- and perhaps Mark can correct me or explain the answer to this. Hobby Lobby was asked -- its lawyer Paul Clement was asked during the oral argument, well, what if Hobby Lobby simply had to go back to an earlier issue, either sign a statement and have either the government pay for this or insurance company pay for this? Some people would object on the -- even though it's even more attenuated, they'd object to even that. Would Hobby Lobby object to doing something as simple as saying, I refuse to do it, somebody else must do it? Mark, would they?

10:50:27

RIENZIIt's a great question, and it's one that Hobby Lobby could answer if the government would ever put a proposal on the table to them. I don't know what Hobby Lobby would do 'cause the governments never offered that. I do know, in the non-profit cases like the Little Sisters of the Poor, what the Little Sisters have said is, I can't sign the government's form that makes my insured do it 'cause I can't be involved.

10:50:46

RIENZIAnd what the Supreme Court said was, that's fine, just tell the government that you object and let the government do it. And the Little Sisters had no objection to doing that. So the problem with the government's proposals, at least in the non-profit cases, is that they try to force the nuns to be involved. Contraceptives may be very important, but I bet most people in the audience have received them without the involvement of nuns. And I think it's probably pretty clear that the government can do it without the nuns.

10:51:09

REHMAll right. To Scott here in Washington, D.C., you're on the air.

10:51:16

SCOTTGreat. Hi, Diane.

10:51:17

REHMHi.

10:51:17

SCOTTThanks, glad to have you back.

10:51:19

REHMThank you.

10:51:19

SCOTTWe've talked about Hobby Lobby and the closely held thing. I want to address something slightly different. And that is Alito's statement about the owners, not the company itself, but the owners having demonstrated a long standing adherence to a certain religious view. I don't think the Bill of Rights talks about a long standing requirement. In other words, if I'm a born again Christian, for example, and I was saved two days ago on Sunday, I think the Constitution protects that. Why did Alito include that language?

10:52:00

REHMBarry.

10:52:00

LYNNYeah, I think, he included it because it sounded sensible to some law clerk at the time. But I honestly don't -- I think Scott raises a very important point. You can develop a sense, whether you're a small company or a non-small company -- and remember, Hobby Lobby and all of these closely held companies, they still get a benefit from forming themselves in that way.

10:52:22

LYNNThey can't get sued like an individual can get sued. They get certain tax advantages. Once you choose to organize yourself that way, you've got to take the good, the bad, and the ugly. But in these cases, and with five justices yesterday, apparently anything you don't like, except for race discrimination and avoiding paying all taxes, is still up for grabs.

10:52:43

REHMMark.

10:52:43

RIENZIScott's exactly right, that we protect religious freedom in this country both for people who've been practicing a certain faith for a long time and for people who are new to a faith. It's one of the lovely things about this country. There are other places where they kill you if you want to switch religious faiths. So...

10:52:57

REHMAnd you're listening to "The Diane Rehm Show." All right. Let's take a caller in -- if I can get this mouse working. Steven, in Dallas, Texas, you're on the air.

10:53:14

STEVENGood morning. The question I had for the panel is, I'm just curious how the mechanics of this insurance issue with Hobby Lobby is going to work. I mean, are they going to seek out an insurance carrier that simply doesn't offer these -- to cover these services? Are they going -- is their insurance carrier going to have to sign some sort of agreement not to cover these kinds of services? And I guess I'm looking at it kind of from the insurance company's point of view.

10:53:41

REHMSure.

10:53:41

STEVENClearly, it's more cost effective to pay for the morning after pill then a pregnancy.

10:53:46

REHMJulie.

10:53:46

ROVNERThey're self-insured. So they are their own insurance carrier. So their -- they have -- I assume they have a third party administrator. They have a lot of employees, somewhere between -- I've seen 13,000, 16,000 full-time employees. So they get to tell them what it is they want to cover and not cover. And that's what they're doing now.

10:54:02

REHMMark. Yeah.

10:54:04

RIENZIYeah, that's right. And if -- I think the caller's probably right that it's cheaper to kill an embryo on the front end then to actually have a child that you have to give vaccinations to. But the good folks at Hobby Lobby are perfectly willing to pay for that. And, you know, I don't think they should be forced to pay for things that would kill a human embryo on the front end. And if the government thinks it's important to get it to people, the government's perfectly free to get it to people.

10:54:24

LYNNYeah, and if an...

10:54:25

REHMAll right.

10:54:25

LYNN...employee, unfortunately, moves from Hobby Lobby to some other company that doesn't believe in vaccination, they're going to have another problem.

10:54:31

REHMAnd that's what Carla's question is all about. She's in Daytona Beach, Fla. You're on the air.

10:54:39

CARLAThank you for taking my call.

10:54:40

REHMSure.

10:54:41

CARLAI have a question on clarification. My question is, this has been looked at Hobby Lobby's position in this whole women family planning -- has been seen from a family planning perspective, but there are a lot of women out there with conditions where a pregnancy puts their lives at risk.

10:54:59

CARLAAnd, furthermore, maybe in the Hobby Lobby case, there's other methods of contraception that they can choose from, but the match-ups that are non-hormonal, in which case, the medication they're taking for their conditions, wouldn't interfere with the birth control or vice-versa. The only method they can use is IUDs because it's the only one that doesn't interfere with medication.

10:55:23

REHMJulie.

10:55:24

ROVNERThis is a big issue. There are a lot of women who take birth control, obviously either the pill or IUDs, for things other than preventing pregnancy. There are medical indications, and as this caller suggests, there are medical indications for taking -- for using birth control that is non-hormonal. And this is one of the issues. And I think the justices did sort of stipulate that there are -- that there is a public good to having this available. And it's just they're balancing this against the religious rights of people who don't want to provide it.

10:55:52

REHMNina.

10:55:53

TOTENBERGI talked to the immediate past president of the American College of Gynecologists yesterday. And she said that one of the things they use IUDs for is to control bleeding, to prevent hysterectomies, for example, and I don't understand the medical systems of all of that. But they use it quite a bit for other purposes other than to prevent pregnancies. They often use it so that women don't have to lose their ovaries.

10:56:22

REHMInteresting.

10:56:22

TOTENBERGYeah.

10:56:24

LYNNYeah, one thing is certain, that when you make it more difficult, more expensive to obtain the most efficient kind of birth control, which is the IUD, that you will increase dramatically the number of planned pregnancies. And in a country where unplanned pregnancies, at least 40 percent of the time, lead to abortions, this is another question that I have about the hypocrisy that I see in Hobby Lobby. More abortions will occur.

10:56:51

REHMAll right. And the question now is going to be, how much of this will be re-litigated in November? Thank you all. Barry Lynn, he's a director of Americans United for Separation of Church and State. Nina Totenberg, NPR's legal affairs correspondent, Mark Rienzi of Catholic University, and Julie Rovner of Kaiser Health News, thank you all.

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